By Peter White
NASHVILLE, TN — Brett Kavanaugh isn’t on the Supreme Court yet, but Sen. Chuck Grassley (R-IA) says he will be by October 1. The full senate may vote as early as September 24.
Grassley is chairman of the Senate Judiciary Committee that held four days of hearings last week vetting Trump’s pick to replace Anthony Kennedy on the high court. Having coached other Republican nominees facing scrutiny to lower courts, Kavanaugh was well-prepared.
Despite the release of emails, that the Republicans and the White House tried to keep secret and which contradict several things Kavanaugh told the committee last week, he is likely to be confirmed anyway because there are simply not enough Democrats in the Senate to block his appointment.
Kavanaugh’s lying to the Senate while under oath, would normally be more than enough to
sink his nomination, but things are out of whack these days, according to President Obama.
“It sure isn’t normal,” Obama told thousands of Illinois college students on Friday, September 7.
“Over the past few decades the politics of division and paranoia has unfortunately found a home in the Republican Party. They’re undermining our alliances, they are cozying up to Russia. What happened to the Republican Party? Republicans who know better in Congress agree and they are quoted saying ‘yeah we know this is kind of crazy’ are still bending over backwards to shield this behavior from scrutiny or accountability or consequence,” Obama said.
As he spoke, a good example of what he was talking about was taking place in Washington. Kavanaugh played cat and mouse with Senate Democrats deflecting tough questions and reciting platitudes about loyalty to the Constitution and the rule of law.
At times there was some tough questioning but the first day of the hearing was taken up with the controversy about documents that were not released from Kavanaugh’s time as a White House staffer under President George W. Bush.
Grassley did not request them and when the Democrats did, the White House consulted with the Justice Department and blocked their release. Personal communications and documents about National Security are exempt from release under the Presidential Records Act.
But Trump had Bush’s lawyer, William A. Burck, go beyond those exemptions to avoid scrutiny and to keep secret Kavanaugh’s behind-the-scenes role in the Bush White House. Republicans accused Democrats of wanting to go on a fishing expedition.
That’s one way to look at it. James Madison, 4th President of the U.S. had a different view. “A popular government without popular information or the means of acquiring it, is but a Prologue to Farce, or a Tragedy, or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives,” he wrote.
According to the New York Times, the Kavanaugh nomination is the first time the White House has ever invoked executive privilege to keep information about a nominee out of a SCOTUS confirmation hearing, “It has all the makings of a cover up,” said Democratic Senate leader Chuck Shumer (D-NY).
Trump and the Republicans wanted Kavanaugh confirmed quickly and without trouble. The mainstream press wasn’t much of a watchdog. It yawned and went to sleep.
Burck released 415,000 pages related to Kavanaugh. “We believe we have faithfully followed President Bush’s instruction to review these documents accurately, neutrally, expeditiously and, with a presumption of disclosure,” Burck wrote.
In Elena Kagan’s confirmation hearing in 2010, the National Archives produced 170,000 pages of documents related to Kagan’s work in the Clinton administration. Sixteen hundred pages were withheld on personal privacy grounds, or about 1 percent. According to Fox News, the National Archives produced 287,000 documents related to Kavanaugh’s time in the White House. Burck withheld 100,000, or 34 percent.
To blunt Democratic anger about the lack of full disclosure, Burck released 42,000 more documents the night before the hearing began. Grassley refused to give Democrats more time to review them and declared them “Committee Confidential”, that is, not available to the public. Sen. Cory Booker (D-NJ) released some of them anyway.
Several emails contain “smoking guns” Democrats say disqualify Kavanaugh from taking a seat on the high court because they contradict his sworn testimony in his nomination to the US Court of Appeals in 2004 and 2006.
He said he never received documents from a mole inside the Democratic Party who stole them from Sen. Patrick Leahy. But it turns out he did.
“Judge Kavanaugh answered under oath more than 100 questions on this hacking in 2004 and 2006,” Leahy said. “His repeated denials that he didn’t receive any stolen info and didn’t suspect anything ‘untoward’ is SIMPLY NOT CREDIBLE.”
Kavanaugh also lied about grooming judicial candidates for their confirmation hearings.
In particular, he testified in 2004 he was not involved with the nomination of anti-Roe v. Wade Appeals Court Judge Bill Pryor in 2003.
“Newly released emails show that’s not true,” Sen. Diane Feinstein (D-CA) tweeted on Thursday. “Asked about how Pryor’s interview went, he replied, ‘call me.’”
Some of the emails Booker made public show Kavanaugh pushed for John Woo to fill a vacancy on the Ninth Circuit Court of Appeals in 2001.Woo was the author of the infamous “Torture Memos” that justified waterboarding of enemy combatants in violation of the U.N Convention Against Torture. Democrats argued that Kavanaugh, like Woo, defended torture in the War on Terror and that he helped give it legal cover as well as the Bush administration’s warrantless wiretap program.
Character references and some of his former law clerks called Kavanaugh “kind and genuine”, a good father, mentor, and friend.
During the hearing Kavanaugh contradicted himself on the constitutionality of criminally investigating the President. He said previously that you can’t indict a sitting president until after he leaves office. But he told the committee last week that “no one is above the law”. He weasled around questions re: Roe v Wade, voting rights, Affirmative Action, the Affordable Care Act, labor rights, and other issues he is likely to vote against once he is confirmed.
Ralph Nader called Kavanaugh a corporation masquerading as a judge. “With Kavanaugh, it is all about siding with corporations over workers, consumers, patients, motorists, the poor, minority voters, and beleaguered communities. Repeatedly Kavanaugh’s judicial opinions put corporate interests ahead of the common good—backing the powerful against the weak, the vulnerable, and the defenseless,” wrote Nader.
Full disclosure and robust probing of Kavanaugh’s record would have showed the American people his true colors. But that didn’t happen. President Obama warned his audience in Urbana to get involved or things will get worse.
“Don’t put you head in the sand. Don’t Boo. Vote,” Obama urged students at the University of Illinois. The midterm election is November 6 and there is still time to register to vote.